During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case.
During the confirmation, the Senate Democrats surrounded the room with giant pictures of people who would lose their health care if Barrett was confirmed and struck down the Act. They were portrayed as her future victims as members pummeled Barrett with accusations that she was just an ACA-killing shill. Barrett retained her composure and did not state the obvious — that she was more likely to vote to dismiss the case than to strike down the Act. She also refused to take the bait in responding to President Trump’s call for the Act to be struck down.
The shameful attacks were unrelenting. Democrats insisted that there was no question that Barrett would vote in the case to strip away health care for millions. Senate Democratic Leader Chuck Schumer, D-N.Y., claimed in a press release that “a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.”
Senate Democratic Whip Dick Durbin, D-M.D., claimed that Barrett was on an “assignment” by Trump to get rid of Obamacare:
“We just chatted for a minute, and I really wanted to try to understand her experience as a person when it came to health care because she is being sent on assignment to the Supreme Court by President Trump. And we know what that assignment is, eliminate the Affordable Care Act.”
Sen. Sheldon Whitehouse, D-R.I., referred to Barrett as a “judicial torpedo” aimed at destroying Obamacare: “This Supreme Court nominee has signaled in the judicial equivalent of all caps that she believes the Affordable Care Act must go, and that the precedent protecting the ACA doesn’t matter,” Whitehouse said. He claimed that the “influences behind this unseemly rush see this nominee as a judicial torpedo they are firing at the ACA.”
Sen. Mazie Hirono, D-Hawaii, claimed in an interview during Barrett’s confirmation hearings that Republicans “want her on that court to hear the Affordable Care Act case… so that she can strike it down. This nominee poses a clear and present danger, an immediate danger, to the healthcare of over 20 million Americans who have healthcare thanks to the Affordable Care Act.”
Sen. Elizabeth Warren (D-Mass.) declared that Barrett would “work to gut” the ACA and called Barrett a “right-wing ideologue who does not represent the majority of Americans.”
Sen. Bob Casey, D-Penn., insisted that Barrett’s nomination was being “fast-tracked” due to the pending case:
“This nominee is being fast-tracked, first of all, because this nominee has been vetted by the two groups that matter: the Federalist Society and the Heritage Foundation,” Casey said. “Both groups totally committed to undoing, striking down the Affordable Care Act. So she’s already passed that test, and she apparently passed with flying colors as she moved very quickly to a likely confirmation.”
Sen. Patty Murray (D-Wash.) tweeted. “Make no mistake, a vote to confirm a Supreme Court nominee who meets President Trump’s tests is a vote to take away people’s health care and vital rights.”
Legal and media experts echoed the narrative that confirming Barrett meant no health care for Americans. Professor Charles Tiefer wrote with complete confidence that “[a]s a textualist, she will find that the whole ACA is dead. It will be somber reminder that however the Presidential race comes out, Republicans have set up a 6-3 Court conservative court that will reign supreme for decades to come.” He and others like NYU Professor Stephen Gillers said that Barrett should consider recusal from the case.
Barrett sat through days of such baseless attacks and predictions. She even had to endure Ibram X. Kendi, the director of the Center for Antiracist Research at Boston University, claiming that her adoption of two Haitian children raised the image of a “white colonizer” and suggested that the children were little more than props to their mother.
I do not seriously expect apologies. That is something that does not happen in our age of rage. Spurious attacks and false claims are simply ignored by the media when they are later proven to be untrue. They served their purpose in the staging of the confirmation. By the time the “judicial torpedo” proved to be a dud, the members and the media had moved on to the next target and orchestrated narrative. All that was left was the sound of a hallow clank hitting the side of the ACA as Barrett joined six other justices to dismiss the case.